Before BAZELON, Chief Judge, and FAHY and WRIGHT, Circuit Judges, in Chambers.

ORDER

PER CURIAM.

1

On consideration of appellant's motion for bail pending appeal, of appellee's opposition thereto and appellant's reply, it is

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ORDERED by the court that appellant's aforesaid motion for bail is denied.

BAZELON, Chief Judge (dissenting):

3

Appellant was arrested on September 15, 1962, on a charge of attempted robbery. The District Court granted bail before trial and set bond at $9,000; following his conviction, the District Court granted leave to appeal in forma pauperis and granted bail pending appeal with bond at $3,500. But appellant remained in prison from the date of his arrest because he could neither afford the required bond before trial nor pending appeal. This court refused to reduce the required bond pending appeal. Appellant's conviction was reversed by this court en banc on July 16, 1964. On remand to the District Court, appellant pleaded guilty to the lesser charge of attempted robbery. On September 25, 1964, the trial court imposed a sentence of one to three years but refused to credit appellant with the two years and ten days imprisonment from his arrest. Pending his appeal from that sentence, appellant now seeks release on bail.

4

Appellant alleges that his sentence violated the maximum three-year statutory term for attempted robbery since the failure to credit him with prior confinement will subject him to imprisonment for at least three years and ten days and perhaps as much as five years and ten days. A substantial portion of his prior confinement occurred solely because he could not afford bond in the required amount. Appellant says that the court's refusal to credit him with this confinement works an invidious discrimination on him because of his poverty.1

5

These matters make plain that the appeal is far from "frivolous or taken for delay." Rule 46(a) (2), FED.R.CRIM. P.2 It must be assumed that the District Court, and this court, in previously admitting appellant to bail pending appeal have determined that he was a fit subject for such release.3 The supervening reversal and resentence present no reason to alter that determination. In addition, if appellant's position is sustained on appeal, he will have been eligible for release on parole on December 7, 1964, and his present imprisonment will subject him to irreparable harm.4 For the foregoing reasons, I would admit appellant to bail pending appeal. And since it now appears that he cannot afford to pay for a bond, I think he may properly be released on his personal recognizance, under the supervision of the United States Probation Office. My view is fortified by appellant's excellent record while in prison and his assurance that, if released, he will reside with relatives in the District of Columbia and he will be employed by a former employer.

The dissent of Chief Judge BAZELON prompts this explanation of my view that appellant should not be released now on his personal recognizance.

7

First I note that the opinions referred to by Judge BAZELON involved bail pending appeals which questioned convictions on appeal. Appellant's case is not of that character. He does not question his conviction. After our reversal of his earlier conviction, in which I joined, he pled guilty to the crime for which he is now serving sentence. He challenges the duration of the sentence then imposed, claiming credits which were not taken into account. In this situation, where guilt is conceded, the discretion of the court respecting bail pending the appeal is broader than when the appeal challenges the validity of the conviction itself. Should appellant be entitled to all the credits which he seeks it is not clear he has served the portion of his sentence which would remain unaffected.

8

Appellant's conceded guilt is of a serious crime of violence involving the use of arms endangering life.1 The District of Columbia Bail Project, which has been of great help to our courts in such matters, looked into the matter of his possible release on personal recognizance after this court's reversal of the earlier conviction and found he did not qualify for such release under the criteria of the Project.

9

The appeal has been argued and is under submission. No doubt it will be decided at an early date. Should it result favorably to appellant's contentions, which are indeed not frivolous, he may soon gain his freedom as of right, having served his lawful sentence. But I think in all the circumstances we should not release him now on his own recognizance as an exercise of discretion on our part.

The opinions of members of the Supreme Court referred to in Judge Bazelon's dissent did not involve crimes of violence. In Bandy v. United States, 81 S.Ct. 197 (1960) Mr. Justice Douglas did not grant bail at all. He denied bail without prejudice to further consideration of the matter by the Court of Appeals; nor did he disturb his earlier decision in 82 S.Ct. 11 (1961). In Ward v. United States, 76 S.Ct. 1063 (1956) the crime was nonviolent, involving the revenue laws. So, too, in Ellis v. United States, 79 S.Ct. 428 (1959), which involved operating a lottery. In Leigh v. United States, 82 S.Ct. 994 (1962), which arose in this jurisdiction and in which I dissented from denial of bail by this court, the offenses were forgery and issuing bad checks